Labor Law Flashcards
Wagner Act of 1935
NLRA; Sections 7 8 and 9
Concerted Activity
NLRA Sec. 7; act to enforce CBA or band with other workers for better work conditions; for the mutual benefit of all employees or bargaining unit.
NLRB Structure
5 board members - 5 yr terms; GC 4 yr term; four divisions; regional offices/attorneys; ALJ
Unfair Labor Practice
NLRA Sec. 8; 6 months SOL; file “CHARGE” with Regional office.
ULP by Employer
NLRA Sec. 8(a): no interference, restraint, or coercion.
Can ULP strikers be replaced?
No.
ULP by Union
NLRA Sec. 8(b); union cannot restrain, coerce with respect to Sec. 7 rights; cannot engage in secondary boycott; cannot picket for recognitional or org. purposes longer than 30 days; no “hot cargo” agreement
30-day picket rule
Sec. 8(b)(C); it’s an ULP for union/ EE to picket for recognition for more than 30 days
secondary boycott rule
not allowed per Sec. 8(b)(4); union cannot force boycott of secondary employer who does business with employer with whom union has a dispute.
“hot cargo” rule
cannot require an employer to not do business with some other person with whom the union has a dispute (NLRA Sec. 8(b)(8))
Taft-Hartley Act of 1947
aka Labor Management Relations Act; prohibited union ULP; makes CBA enforceable in federal court.
Landrum-Griffin Act of 1959
aka Labor-Management Reporting and Disclosure Act; regulates union activity; broadened coverage of secondary boycott provisions and partially restricted representational picketing rights of union.
Does NLRB adjudicate labor issues in bankruptcy case?
No, the Bankruptcy judge does.
When does NLRB hear a case about ULP?
Only when complaint is issued. GC discretion is unreviewable.
Equitable tolling for ULP complaint SOL
possible if fraudulent concealment
3 ways to establish union representation
Voluntary by employer; Bargaining (“Gissel”) Order; Election Petition
Election Petitions
Certification of Representation (“RC”); Representation petition (“RM”); Decertification Petition (“RD”); Withdrawal of Union Shop Authority petition (“UD”); Unit Clarification (“UC”); Amendment of Certification (“AC”)
RC petition
Filed by employees or union. Must have at least 30% “showing of interest”
RM petition
filed by ER; no showing of interest required; ER must have reasonable basis to believe incumbent no longer represents majority.
RD petition
filed by employees if 30%< no longer want union representation
Election Bar
one year from date of preceding final and valid election
Certification Bar
one year from certification date (not election date)
Contract Bar
Term of CBA or 3 years, whichever is shorter, during which rival union cannot file petition except between 90-60 days before expiration of CBA
Sabine Pilot
exception to at will; SOLE reason for discharge must be refusal to do an illegal act that would subject EE to criminal liability; must be discharged
Mixed motive in Sabine Pilot?
No.
Private COA for whistleblower in TX?
No, unless in one of the occupations that has statutory protection.
Duty to investigate before terminate EE?
No statutory
SOL for Pay day claim
180 days to file with TWC but no admin prerequisite
Vicarious liability for negligence by EE
must have been engaged in duties & activities within scope of employment; strict liability for higher employee acting on behalf of ER; ER knew or should have known
negligent hiring/retention
ER knows or should have known w/ exercise of reasonable care that EE was incompetent, unfit, or otherwise dangerous and ER failed to take reasonable measures to prevent injury to others
Joint employer
share control
Whistleblower SOL for public employees
90 days.
Chapter 451 of Tex. Labor Code
Workers’ Comp. statute: Protects against discrim/retaliation
What ER are covered by TLC Ch. 451
Only subscribers
EE BOP for Ch. 451 claim
(1) filed a WC claim in good faith or instituted a proceed (2) causal connection with AEA and (3) “but for” causation (mixed motive okay)
Texas Covenant Not to Compete statute
Tex. Bus & Comm Code Secs. 15.50 - 15.52
CNC to be enforceable, must be…
ancillary to an otherwise enforceable agreement (supported by consideration more than $$).
CNC reasonable limitations of…
scope, geography, time
Time period usually found reasonable for CNC
2-5 years, depending on balancing ER interest with EE interest
CNC must not…
“impose a greater restraint than is necessary to protect the goodwill and business interests of the ER”
blue pencil
Court may revise CNC if overly broad or strike out; ER cannot recover damages, only injunctive relief
Non-solicitation agreements
same test at CNC under the Act
Can lawyers and doctors have CNC?
No for lawyers. Doctors must have access to 1-year patients list.
Remedies for violating CNC
Actual; punitive if fraud or malice; injunctive relief; attorneys’ fees; civil penalties for theft of trade secrets (TUTSA)
Texas Arbitration Act
ARB agreement must be in writing, signed by each party, reference by incorporation okay, and must meet general terms of a K; like FAA, court doesn’t have discretion not to enforce ARB agreement
FAA vs. Tex Arb Act
TAA excludes several types of claims that FAA doesn’t, so FAA preempts if it applies.
FAA
interstate commerce; contract has clear agreement; meets other contract rules; court must enforce ARB; court cannot vacate ARB award unless one of 4 facts apply. Presumption in favor of ARB
to vacate an ARB award under the FAA:
court must find (1) award was procured by corruption, fraud or undue means; (2) there is evidence of partiality or corruption among arbitrators; (3) arbitrators were guilty of misconduct which prejudiced rights of one party; (4) or arbitrators exceeded their powers.
FCRA
Fair Credit Reporting Act
FCRA applies to what?
When ERs use credit reporting agency to obtain background info re applicant or EE
FCRA rules
must obtain written consent from applicant/ EE; must provide results to EE within 3 business days (3 days for invest. CR) if taking AEA and provide reason and rights under FCRA; FCRA applies to credit reports and investigative Consumer reports; EE has right to contest in 60 days and right to know who the CRA is. ER must certify to CRA that ER followed FCRA rules. FCRA disclosure and acknowledgment must be separate document(s); if applicant requests- ER must provide full CR disclosure within 5 days of request; there is individual liability.
Penalties for violating FCRA
actual damages ($100-$1,000); punitive, costs and attorneys’ fees. No punitive for negligent noncompliance.
FCRA rules for EE making less than $75k/year
CRA may not supply ER with info re 10+ yr old bankruptcy and not other adverse info (e.g., tax liens, credit collection, convictions, etc.) 7+ years old
SOL for FCRA
2 years after EE discovers, not more than 5 years after occurred
Title VII of the Civil Rights Act of 1964
protects certain groups; applies to ER with 15+ employees
EE req’t of T 7
15+ (any) employees in each of 20+ calendar weeks in the current or proceeding calendar year
EEOC requirements for T 7 claim
file with EEOC in 300 days (180 days if file with TWC); 90 days file suit after RTS letter
TCHRA requirements for TWC
180 days to file with TWC; 60 days to file suit after RTS letter.
T 7 protected classes
RNCLRS: Race, National Origin, Color, Religion, Sex (includes gender and pregnancy)
THCRA protected classes
RNCLRS + age and disability (15+ employees even for age)
BFOQ
bonafide qualification: Defense to discrim claim; must relate to essence of central mission of ER’s business. not available for Race or Color
McDonnell Douglas burden-shifting framework
(circumstantial cases only) Burden of proof always with plaintiff; if est. prima facie case, then burden of persuasion shifts to ER; if ER proffers LNDR; then burden shifts back to EE to rebut with pretext.
Causation / mixed motive in T 7 claims
but for causation if mixed motive: ER must show that it would have taken AEA absent impermissible factor
T 7 prima facie disrimin case
(a) protected class (b) qualified for job (c) AEA (d) because of protected class or treated less favorably or replaced by someone not in protected class.
Retaliation
(a) engaged in protected activity (b) AEA (c) causal connection
AEA
adverse employment action that affects term or condition of employment
harassment
egregious; affects work conditions
quid pro quo
sexual harassment; offer benefit in exchange for sexual act
protected activity
oppose or participate in an action that EE reasonably believes violates T 7 (objective standard)
disparate impact
neutral policies applied equally have disproportionate adverse effect on protected group
After acquired evidence
may be a defense to limit damages; ER shows that it would have taken same AEA if it discovered AAE
duty to mitigate
EE must try to find comparable job; does not need to lower standards, but may need to lower sights. Is not required to take substantially lesser job.
Remedies for T 7 / TCHRA violation
reinstatement (but front wages if no reinstatement); injunction; lost wages (back & front pay); interest; compensatory; punitive; attorneys’ fees/costs
Punitive damages for T 7 violation
if violation was willful (knowing, malicious; or reckless)
Statutory caps under T 7
for comp/pun damages only: 15 - 100 [$50k] 101-200 [$100k] 201-500 [$200k] 500+ [$300k]
ADEA damages
same as T 7 except no comp/punitive damages
Can defendant get attnys fees if prevails?
Yes, if suit was frivolous or w/o foundation
Religious accommodation
affirmative duty to accommodate religious practice for sincerely held belief if not an UNDUE hardship
Undue hardship under T 7
If ER cannot accommodate because cost is too high
Posting and recordkeeping for EEOC
EEOC must be posted in conspicuous location; EEO-1 must be filed by ER with 100+ ee (not gov’t or schools, or tax exempt private membership clubs); EEO-1 includes breakdown of EE according to race, sex and ethnic categories; filed annually
42 USC 1981 (SOL and caps/EE reqt)
no admin prereq; race only (right to contract); does not apply to Fed employees; 4 year SOL; no caps; no min EE required
CRA of 1991
provided for jury trials for T 7 and ADA; placed statutory caps; codified disparate impact theory; extended to American ERs operating abroad
ADA and ADAAA
no discrim/retal based on (perceived) disability
Disability under ADA
substantially limits a major life activity; not transitory or minor; mitigating measures and remission not considered
ER under ADA
15+ employees in each working day of 20 weeks in current or prior year; govt employers exempt
Business necessity defense under ADA
related to job and necessary for business; no reasonable accommodation
Claims under the ADA
discrimination; failure to accommodate; retaliation
Prima Facie claim of ADA discrim
qualified individual with a disability; AEA; ER knew of or perceived as disability; treated less favorably/replaced by non-disability person
Prima Facie failure to accommodate ADA claim
qualified individual with a disability; ER on notice of need for reasonable accommodation; failed to accommodate; AEA
Qualified Individual with a disability
person who (1) has disability that substantially limits a major life activity and who can perform the job with or without a reasonable accommodation; (2) regarded as having a disability; or (3) record of having a disability
Reasonable accommodation
ER can propose; must engage in interactive process; no RA if undue hardship on ER (monetary or massive change)
Medical exams for ADA
only request if necessary to understand for accommodation or leave; can ask for second and 3rd opinions at ER expense; must be kept separate and confidential.
Pregnancy Discrimination Act
extended T 7 “because of sex” to pregnancy
ADEA
Age Discrimination in Employment Act of 1967
ER covered by ADEA
20+ employees.
Individual supervisory liability under ADEA?
No.
Admin prereq for ADEA?
Yes, same as T 7
Prima Facie claim for ADEA
(a) age 40+ older (b) qualified (c) AEA (d) replaced by substantially younger person or otherwise discriminated against b/c of age
Benefits under ADEA
requires same benefits to EEs age 65+ as younger group; requires continued pension accruals regardless of age
Remedies under ADEA
same damages as FLSA, including LD up to equal amount of monetary damages if willful; NO punitive or comp damages; attorneys fees and costs; injunctive relief
OWBPA (Older Workers Benefit Protection Act)
Amended the ADEA to prohibit age disrim in EE benefits unless ER shows equal benefits for older workers costs more; requires waiver to be knowing and voluntary (i.e., clearly written, chance to consult attorney, 21 day consideration, 7 day revocation periods)
Can ask for RTS letter from TWC / EEOC
after 180 days
Prima Facie case under TCHRA
(a) protected class (b) AEA (c) treated less favorably.
Pretext-plus standard under TCHRA
if ER proffers LNDR for AEA, then EE must show that discriminatory reason was the REAL reason.
3 part test for religious institution
(1) financial and managerial ties b/w religious org & activities conducts through EE; (2) ties b/w function of org. activities and the religious tenets of org. If second prong does not apply, then (3) ask whether EE position bears substantial relationship to rel org of ER
Right to jury under TCHRA?
not statutory, but courts have said yes
Lilly Ledbetter Fair Pay Act of 2009
In context of discriminatory pay, each paycheck triggers new EEOC charging period
Faragher Ellerth defense
applies to vicarious liability; ER took steps to prevent harassment and EE failed to take reasonable advantage of the opportunity.
Polygraph Protection Act
ER cannot require polygraph unless reasonable suspicion to believe EE was involved in theft. Cannot use it as reason to terminate.
FLSA qualifications
EEs doesn’t matter; ER must be engaged in interstate commerce with $500K+ gross revenue; minimum wage and hour requirements
Independent contractor test
“Economic Realities” six-factor test to determine if IK is an EE under the FLSA; FLSA doesn’t apply to IK
SEPTTIC
Skill; Exclusivity; opportunity for Profits/Loss; Tools and equipment; Term of employment; Integral part of business; Control
Overtime
hours worked over 40 in a workweek (any 7 day consecutive period)
Who is an EE under FLSA?
“suffer or permit to work”; non-exempt
For what work must an EE be paid?
Time performing duties; time driving between duties after reporting to work/before end of day; “engaged to wait;” short breaks; donning/doffing if not de minimis and if required for job; time driving to site if beyond where usually works; meetings/training unless not related to/during work, not required, and does not perform work during meeting.
Minimum wage
$7.25 ($2.13 for tip EE); cannot cause wages to fall below MW for ER-caused deductions (except perhaps food)
Tipping and minimum wage
EE who receive more than $30/mon in tips; customer-facing; can be paid $2.13/hour so long as their pay and tips equal minimum wage.
Tip credit
ER can pay $2.13/hour so long as tips to EE equal minimum wage; EE must be informed of tip credit; tips must all be retained by EE subject to tip pooling; tip pooling allowed for EE who regularly receive tips
Tip pooling
Tipped EE cannot be required to contribute greater % of their tips than is customary and reasonable (not questionable if does not exceed 15% of EE tips); can only be pooled among tipped EE
Calculations of OT
1.5X regular rate
Calculations of regular rate
all renumeration paid in workweek (including bonus, per diem, stipend, commission) / hours worked = regular rate. Texas allows remaining OT to be paid at 1/2 of regular rate
Fluctuating workweek
Allowed so long as minimum wage and OT requirements met
FLSA “salary basis” test
paid regularly (weekly or less frequently), not subject to how EE performs job or how many hours they actually work in a week unless entire day off
Child Labor Laws
generally, kids under 14 cannot be employed. If they are, must be in non-hazardous jobs and cannot interfere with school. Some limits on times when school not in session.
How to calculate OT for tip-credit EE
Calculate what the “tip credit” is (MW minus actual hourly rate); then calculate what the minimum OT would be if paid straight MW ($7.25 X 1.5 = $10.875); then subtract the tip credit from the minimum OT rate = OT for tip-credit EE
remedies under Tip rules
up to 3 years calc of underpayments; LD equal to amt of back pay; attorneys’ fees; liability for all EE subject to illegal tip pool
SOL for FLSA
2 years; 3 years if willful (knew or showed reckless disregard)
Remedies under FLSA
all amounts due; interest; attny fees and costs; LD automatic unless ER shows act was in good faith/reasonable belief of compliance. Civil fines ($1100+) and Criminal penalties, too.
Collective Action under FLSA
FLSA Section 216(b); notice stage; conditional certification; SOL continues; discovery; decertification; trial
Recordkeeping requirement under FLSA
ER must make, keep and preserve records for each EE, including personal info; workweeks and hours; earnings; regular hourly rate; OT pay; deductions; pay period wages; date of payments
Posting requirement under FLSA
ER must post FLSA notice in conspicuous places explaining MW and OT provisions
FLSA Exemptions
Executive; Highly-compensated; Administrative; Sales person (outside sales and retail); Computer professional; learned professional; creative professional
Salary threshold for Exec., Prof., Admin. FLSA exemptions
$684/week or for Highly-paid: $107,432/year
Executive exemption
Salary basis; management constitutes primary duty; customarily & regularly directs work of 2+ FT EEs; authority to hire/fire
Administrative exemption
salary basis; primary duty is performance of office or non-manual work related to management or general business operations of ER/ER customers; primary duty includes exercise of discretion & independent judgment with respect to matters of significance
Highly Compensated Employee exemption
salary basis; customarily and regularly performs any one or more duties of Executive, Administrative, Learned Professional or Computer Professional exemption; primary duties involve office or non-manual work.
Other FLSA exempt employees
amusement/recreational establishments; fish processing; agricultural workers; Railway Labor Act; domestic servants; forestry/logging operations; newspaper delivery; home care workers if spend no more than 20% of time providing care to patient.
SOL for ULP claims
6 months Statute of Limitations
OSHA
Occupational Health and Safety Act of 1970
ER covered by OSHA
any who have 1+ employee and work involves interstate commerce; not self-employed, immediate family EE; EE covered by other federal agencies; public EEs in gov’t
General Duty Rule (OSHA)
ER must furnish workplace free from recognized hazards that cause/likely to cause death or serious physical harm
ER violates General Duty rule when (OSHA)
(a) failed to render workplace free from recognized hazard that was (b) causing/likely to cause death or serious physical harm, (c) hazard was recognized by industry, and (d) feasible measure existed that would have materially reduced likelihood of hazard
Can OSHA issue citations for violating general duty even if no specific OSHA standard applies?
Yes, but applies GD standard
Variances allowed under OSHA
ER can obtain a variance from Sec of Labor excusing complaince with standard: Temporary; Permanent (operations/conditions are safe and comliant with intent of standard); Experimental
Experimental Variance (OSHA)
Allows ER to obtain variance from Sec Labor excusing strict compliance with standard if ER is participating in effort to demonstrate or validate new job safety techniques
OSHA standards
(a) safe workplace, (b) safe tools & equipment, including PPE; (c) provide training and supervision for EE to enable them to deal with / recognize hazards; (d) if ER has 10+ EE or not in a low-hazard industry, ER must maintain records & post conspicuously; and (e) report injuries
OSHA recordkeeping
Must retain forms for 5 years (medical for 30 yrs); post in conspicuous places; Form 300: injury and illness log & summary; Form 300A: Summary of work-related injuries/illnesses; Form 301: Injury & Illness Incident Record
OSHA reporting requirements
report accidents to OSHA w/in 8 hours of occurrence if 1+ fatality or hospitalization of 3+ EE (within 30 days of incident)
OSHA Agencies
Enforced by Area Director of Region; adjudicated by OSHA review commission (OSHRC); legal counsel is office of Solicitor (DOL)
OSHA sanctions
Citation shall set reasonable time for abatement; max for serious injury that ER did not exercise reasonable care/diligence: < $7k per violation (per day). Repeat violation: $70k. “Willful violation”- minimum is $5k < $70k
OSHA SOL to issue citation
6 months
Criminal penalties for OSHA violation
$10k fine and < 6 mons prison for 1st violation; subsequent violations - $20k and 1 year prison
OSHA preempt common or statutory state law?
No.
Violations of OSHA admissible? Negligence per se?
Yes, admissible, but not negligence per se
OSHA mitigating factors
Gravity of violation; size of ER business; ER good faith; ER history of violations
ER defenses to OSHA violations
A) unpreventable EE misconduct: (1) est work rule would prevent violation, (2) adequately comm work rule to EE; (3) monitoring in place; and (4) violations of rule uniformly enforced; B) Failure to cite in 6 mons; C) Lack of jurisdiction
ER SOL to file notice of contest of OSHA violation
15 working days after receiving citation
SOL time for Sec of Labor to file complaint with OSHRC seeking affirmation of OSHA citation
20 days after notice of contest
SOL for ER to file answer to Sec of Labor complaint (OSHA)
20 days
ALJ hearing on OSHA complaint
no less than 30 days notice of hearing
What if no hearing within 30 days
Complaint is deemed denied
SOL to file petition of review of OSHA ALJ to OSHRC
30 days after hearing order
OSHRC decision becomes final ___ days after notice of decision filed if no appeal to COA
60 days
COA decision becomes final ___ days after order unless appealed to SCOTUS
90 days
SOL to file petition to appeal new OSHA regulation to COA
within 60 days of rule’s publication
Formal settlement agreement with OSHA becomes final __ days after ALJ approves the settlement
30 days
Can ER get attorneys’ fees/costs back in OSHA dispute?
Yes, if OSHRC finds OSHA’s position was not substantially justified
Informal Settlement Agreement (OSHA)
Area Director has authority to enter informal settlement agreement with ER before ER files notice of contest, which is effective so long as it’s signed before the 15 days expires; becomes effective 15 days after signature
If ER wants to make “substantial” change to the Informal Settlement Agreement…
deemed to be a notice of contest; penalties if filed after 15 days after parties’ signature to informal settlement agreement
FMLA
Family and Medical Leave Act of 1993; protects job for 12 weeks of leave to care for new baby or sick family member/self
FMLA coverage
50 EE (any type); interstate commerce; EE must have worked 12 months and 1250 hours in last 12 month period (must work in location with 50+ EE within 75 mi radius)
Joint Employer under FMLA
“integrated ER” test: (1) common management, (2) interrelated operations, (3) centralized control of HR/labor relations, and (4) degree of common ownership/financial control
Equitable estoppel (FMLA)
If ER makes EE believe EE is covered, then EE is covered.
Serious Health Condition (FMLA)
illness, injury, impairment, or physical/mental condition that involves inpatient care; incapacity & treatment/pregnancy/chronic conditions/long term conditions, or conditions that require multiple / regimen of treatments.
Four methods of calculating 12-week FMLA leave
Calendar year; any fixed 12-month period; 12 months measured forward from date any EE’s first FMLA leave beings; rolling 12 mos period measured backward from date EE uses any FMLA leave.
EE rights under FMLA
12 weeks of leave (26 if caring for military family); continuation of benefits at previous premium cost; reinstatement to equivalent or “virutally identical” job unless not available, then comparable job
SOL for FMLA violations
2 years (3 years if willful)
FMLA claim types
interference; discrimination; retaliation
Mixed motive in FMLA
defense if LNDR was other reason
FMLA remedies
like FLSA and ADEA: lost compensation (plus interest), equitable relief, attorney fees/costs, and LD unless good faith; NO comp/punitive damages; collective action allowed
FMLA recordkeeping
Must keep records for 3 years. Must include: dates of leave, notices, disputes, med cert records, payroll data, benefits payment info, leave Policies
Can ER require EE to take other paid leave during FMLA?
Yes
Equal Pay Act of 1963 (part of FLSA)
cannot discriminate based on sex. Elements: (1) equal pay (2) substantially equal work, (3) same facility, and (4) similar conditions
Administrative prerequisite for FMLA?
No, but can report violations to DOL
Worker Adjustment and Retraining Notification (WARN) Act
ER with 100+ EE must give 60 d notice to EE at signle site if plant closing (50+ EE) or mass layoff (50 EE and at least 33% of active workforce at single site, or 500 EE)
Timing of WARN req’ts
all lay-offs occurring within a 30-day period will be aggregated; presumption that all layoff/termination decisions occurring w/in 90 d of one another are part of a single decision
Recipients of WARN notice (there are 4)
(1) Chief elected ofcr of union rep. for affected EE; (2) Each EE not represented by a union; (3) State Dislocated Worker Unit; and (4) Chief elected official of unit of local government.
SOL for WARN violations
2 years or 4 years (unclear in statute)
Vietnam Veterans Readjustment Assistance Act (VEVRAA)
Prohibits contractors who have K with Fed or subK with $100k+ (unless outside US) from discriminating against Vietnam-era veterans who served in Vietnam or were on active duty between approx 1961 - 1975 or were discharged for service-connected disability during that time. Must take Affirmative Action and comply with job posting and notification requirements, as well as Affirmative Action Plan (“AAP”)
Rehabilitation Act of 1973
Same applicability as VEVRAA; prohibits discrimination by fed and fed contractors based on discrimination; notice and posting requirements and anti-discrimination and AAP
Uniformed Services Employment and Reemployment Rights Act (USERRA)
covers all ER no matter what size; general reinstatement rights to any EE who leaves to serve in military, voluntarily or involuntarily; EE is entitled to reinstatement upon return and satisfactory completion of service term.
Undue hardship defense under USERRA
ER not obligated to reemploy EE if ER’s circumstances have changed to extent that reemployment would be unreasonable, impossible, or would impose undue hardship; only when it would require a creation of a useless job or where there has been RIF that reasonably would have included service member.
If EE not qualified for position under USERRA
then ER is obligated to make reasonable efforts to train the EE
Escalator principle (USERRA)
EE is reinstatement to position where service member would have been had he/she kept the position continuously.
Prompt requirement (USERRA)
ER has 2 weeks to reinstate service member
EE requirements under USERRA
must have been other than dishonorable discharge; not absent for more than 5 years unless 5+ years required for initial term of service; if longer than 31 days, can be requested to provide documentation of service and discharge; must promptly re-apply to job (varying deadlines depending on length of service)
Deadlines for EE’s USERRA reemployment application
Less than 31 d - first regularly scheduled work day after 8 hours EE returned home; 31-180 days - within 14 days of completion of service; 181+ days - 90 days after completion of service; service-connected injury/illness - may be extended for up to 2 years.
USERRA types of claims
no discrimination or retaliation; mixed motive okay- must be “motivating factor”
Texas Payday Act
exempt EE paid 1X per month; nonexempt EE paid 2X/mon; if terminated, paid w/in 6 days; if quits, paid next payday; no garnishment unless previous permission in writing or court order; cannot garnish >50%; priority is child support payments; ER can charge small admin fee; if emp terminated, ER must notify CT of new address within 7 days; ER cannot discrim against EE
deadlines under Texas Payday Act
EE must file complaint with TWC < 180 d after date wages claimed became due; ER must respond in 14 d
procedure for Texas Payday Act claim
EE files complaint w/in 180 days; ER answers in 14 days; TWC issues preliminary wage determination (PWD); EE/ER can appeal PWD within 21 days; notice of hearing w/in 21 days and hearing date no later than 45 d after notice mailed; after hearing, ER or EE have 14 d to appeal/file motion for rehearing; final order issued; ER or EE may sue to appeal TWC final order w/in 30 d (*Similar under Texas Unemployment Act, except 28 d to file appeal)
Remedies under Texas Payday Act
3d degree felony if ER intends to avoid paying wages and fails to pay after demand; offense for each pay period at issue; Injunctive relief (AG may seek against ER); bad faith - Commission may assess admin penalty in amt of wages or $1,000, whichever is less.
Waiting period to file for unemployment (Texas Unemployment Act)
7 days
Eligibility for benefits under Unemployment Act
1) reported wage credits of statutorily specified amount during base period, 2) register for work and continue to report to employment office, 3) make claim for benefits, 4) unemployed for 7 d waiting period, 5) be able to work without restriction, and 6) participate in reemployment services (diligently search for work at least 3X/week)
SOL under USERRA
non specified, but some courts have applied 4 years
